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Nagendra Rai, J.—Appeal No. 1455 of 2000 is time-barred. After hearing learned Counsel for the parties and taking into consideration the averments made in the limitation petition, we find that a good ground has been made out to condone the delay in filing the appeal. Accordingly the delay in filing the appeal is condoned and the limitation petition thus stands disposed of.
All the three appeals have been filed against a common judgment dated 23.6.2000, (reported in Balram Prasad Sinha Vs. State of Bihar and Others, passed by the learned Single Judge in C.W.J.C. No. 7157/1998 filed by Balram Prasad Sinha (hereinafter referred to as ''the Respondent'') and C.W.J.C. No. 2531/ 1997 filed by Braj Bhushan Prasad Singh (hereinafter referred to as the Appellant). By the said judgment, the learned Single Judge has allowed the writ application being C.W.J.C. No. 7157/1998 filed by the Respondent and directed the authorities to pay his salary due since 1981 and also to consider his case for regularisation of service against the first post of Lecturer in Zoology in Purvottar Railway College, Sonepur (hereinafter referred to as ''the College'') in terms of the relevant Statute, and further held that the appointment of the Appellant on the said post was illegal and, accordingly, dismissed the writ application being C.W.J.C. No. 2531/1997 filed by him. L.P.A. No. 1455/2000 has been filed by the Governing Body of the College and its Secretary challenging the aforesaid judgment of the learned Single Judge. L.P.A. No. 1013/2000 has been filed by the Appellant challenging the judgment allowing the claim of the Respondent and L.P.A. No. 1012/2000 has been filed by the Appellant against the dismissal of his writ application.
The question involved in these appeals is as to who has been validly appointed on the post of Lecturer in the discipline of Zoology in the College? The facts, which have emerged in these appeals, remind us of what was sensed by Marcellus in Scene V of Act I in Shakespear''s Hamlet, namely, "something is rotten in the State of Denmark". It is sad state of affair that the education system is rotten in this State. The matter with regard to appointment on the said post is the bone of contention between the Appellant and the Respondent for more than twenty year''s and the authorities from the College up to the office of the Chancellor have passed contradictory orders. The result is that the whole thing is in mess and the duty is cast upon us to decide the matter in such a situation.
One admitted fact is that the College was established in 1978. Affiliation was granted up to Intermediate stage from the Bihar University in 1981-82 and, thereafter, the affiliation was granted to the Degree stage. Later on Jay Prakash University, Chapra, was carved out from the Bihar University, Muzaffarpur, and the College is presently affiliated to the Jay Prakash University, Chapra.
The case of the Appellant is that on 27.1.1979 the College Inspectors of the Bihar University inspected the College for the purposes of grant of affiliation. The inspection Team, after visiting the College, submitted a report in the year 1979 that the appointments of the teaching and non-teaching staff ware not validly made and regular appointment of one teacher in each subject be made either by the Railway Board or by the Selection Committee constituted by the Ad hoc Committee consisting of one expert in the subject from the University. In terms of the suggestion given by the Inspection Team, the College took steps and an advertisement was published in the daily newspaper, namely, Searchlight, on 26.6.1979 for appointment of Lecturers oh temporary basis in different subjects including Department of Zoology. A large number of candidates applied in the subject concerned. Interview was held on 1.9.1979 and thereafter one Shri Narendra Kumar Srivastava was selected by the Selection Committee and was appointed on the first post of Lecturer in Zoology on 3.9.1979 and the Bihar College Service Commission granted concurrence in temporary appointment of Shri Shrivastava, which was extended from time to time. In 1983, Mr. Shrivastava left job and, thereafter, the Appellant was appointed by the Ad hoc Committee of the College by order dated 26.7.1983, in pursuance of which he joined on 26.7.1983, a copy of which was annexed as Annexure 2 in his writ application.
On 4.10.1986 again an advertisement was issued by the Ad hoc Committee for appointment on temporary post of Lecturer, in the subject concerned and other subjects in the daily newspaper, namely, Times of India. The said advertisement was again modified op 20.10.1986 by publishing the same in a daily newspaper and, thereafter, interview was held in the subject concerned and other subjects. The Appellant and others applied and appeared before the Interview Committee and he was placed at serial No. 1 of the list of selected candidates. The said recommendation was considered by the Ad hoc Committee and thereafter, the Appellant was appointed and his service was also regularised with effect from 26.7.1983 i.e. from the date of initial appointment on ad hoc basis. The College Service Commission granted concurrence in the temporary appointment of the Appellant for one year vide letter dated 7.11.1987 from the date of joining or the date of sanction of the post, whichever is later. Again by subsequent letter dated 6.1.1988. the Commission modified its earlier letter and granted its concurrence in the temporary appointment of the Appellant till the recommendation for permanent appointment was made by the Commission, a copy of which was annexed as Annexure 6 to the writ application filed by the Appellant.
While this process was going on, the Commission had already issued an advertisement in 1984, which was published in Searchlight on 10.8.1984 inviting applications for appointment on the permanent post of Lecturer in the Department of Zoology in the College. The Appellant claims to have applied for his appointment against the first sanctioned post of Lecturer in Zoology in the College and he also appeared before the Interview Committee, but no final recommendation was made by the Commission. In the meantime, Respondent Balram Prasad Sinha approached the Registrar of the Bihar University that he has been appointed as Lecturer against the first post of Zoology, as a result of which the Registrar of the University was pleased to communicate to the Principal that even, when the Respondent was allowed to join the College on 28.11.1988, he was not allotted classes nor was he paid his salary and again the Registrar by letter dated 30.9.1991 informed the Principal of the College that the Vice Chancellor has passed order for maintaining status quo ante as obtaining prior to 30.3.1991 with respect to allotment of classes and payment of salary to the payment (sic) and the Respondent. The Vice Chancellor of the University constituted a Three Man Committee to hear the grievance of the Respondent as well as others regarding validity of their service by order dated 30.9.1991 (Annexure 11 to the writ application filed by the Appellant). Three Man Committee however, did not submit the report. In view of the aforesaid letter, the Appellant was not being paid his salary and he made a representation to the authorities including the Chancellor and the office of the Chancellor by letter dated 6.11.1996 asked the Vice Chancellor to look into the grievance of the Appellant and dispose of the matter promptly with an intimation to the Chancellor''s Secretariat (Annexure 13 to the writ application). In the light of the aforesaid order of the office of the Chancellor, the Syndicate of the Jay Prakash University decided to enquire into the matter vide its decision taken on 8.1.1997. In the meantime, the Respondent filed a writ application being C.W.J.C. No. 360 of 1995 for a direction to the College and the University to permit him to discharge his duty and function attached to ''the post of Head of the Department of Zoology of the said College, which was finally disposed of on 17.7.1996 and this Court directed the Chancellor to dispose of the pending representation within time specified therein. This Court further directed the Respondent to file a copy of this order along with a copy of the representation before the Chancellor and in pursuance of that the Respondent filed a representation before the Chancellor and the Chancellor, without hearing the Appellant, passed an order that the Respondent be allowed to resume his duty forthwith and the payment of his current salary be started without delay and further ordered that the continuity of service of the Respondent shall be maintained. The said order of the Chancellor was communicated by the University to the College authority. Thereafter, the Appellant filed a review before the Chancellor for modification of the aforesaid order mentioning therein that neither in the writ application nor before the Chancellor he was added as a party and the order has been passed behind his back, but the said representation was not disposed of.
The further case of the Appellant is that the Respondent was never appointed by a duly constituted Selection Committee against the sanctioned post of Lecturer in the department concerned and as such his claim of continuity since 1978 is without any basis. The said fact is also falsified by the first inspection report dated 17.1.1979. The Respondent did not possess the requisite qualification for appointment as Lecturer in the subject as he obtained 51.01% marks in M.Sc, which is not a high second class marks, whereas, the Appellant has secured 65% marks in the subject and, thereafter, he filed C.W.J.C. No. 2531 of 1977 praying therein to issue a direction to the Respondents not to interfere in the peaceful discharge of his duty as Head of the Department of Zoology as well as for a direction for payment of his current salary and pay all arrears of salary as well as current salary and for a declaration that the appointment of the Respondent is illegal and the Chancellor may be directed to produce a copy of the order dated 4.11.1996 passed in favour of the Respondent.
In the said writ application, on 19.5.1997 this Court while issuing notice to the Respondent ordered that "the Appellant shall not be disturbed from his position as H.O.D., Zoology of the College. However, the interim direction will not come in the way of the College Service Commission from making the selection for the post and Recommending the selected candidates for appointment against the post. As and when a regular appointment is made on the basis of the recommendation made by the College Service Commission, the interim direction given in this order shall cease to operate". In the meantime, the Respondent appeared and filed an application to direct the authorities to allow him to discharge his duties and receive salary and the said matter was considered by this Court on 8.5.1998. This Court clarified the earlier interim order dated 19.5.1997 and observed that if the Commission made a recommendation and if no appointment has been made in terms of the recommendation, then that was to be made within fifteen days of the production of the said order before the Secretary of the Governing Body. However, if the appointment had been made then there was no question of making any appointment. After appointment, the regularly appointed Lecturer shall function and the interim order dated 19.5.1997 shall cease to operate. Thereafter, the College Service Commission vide letter dated 11.8.1998 recommended the name of the Appellant for appointment against the first post of Lecturer in the subject concerned in pursuance of advertisement No. 112/84, pursuant to which, as stated above, the Appellant had already applied and though interview was held but final selection was not made. On the basis of the said recommendation, the Governing Body of the College resolved to appoint the Appellant against the first post of Lecturer in the department concerned in its meeting dated 30.8.1998 and an information was sent to the Appellant by the Committee and he was asked to join and, accordingly, he joined on 8.9.1998. The University was informed about the approval of appointment and, thereafter, the Syndicate In its meeting dated 13.12.1998 accorded approval to the appointment of the Appellant and the Appellant was informed about the decision of the Syndicate and the University also made a request to the State Government to release fund and deficit claim for making payment of arrears as well as current salary of the Appellant and, thereafter, payment was released and, thereafter, since October, 1999 the Appellant is being paid his salary by the University.
Thus, the claim of the Appellant, in brief, is that initially he was appointed on ad hoc basis. In 1983, it was concurred by the College Service Commission and, thereafter, he applied in pursuance of an advertisement for permanent appointment and his case was recommended against the first post in the subject of Zoology and in pursuance of which he has joined and is working. The Respondent was never appointed on regular basis and as the Appellant has been appointed, there is no question of regularisation of service of the Respondent in terms of the relevant Statute as directed by the learned Single Judge.
The case of the Respondent is that he was appointed as a founder teacher in the department concerned and was also entrusted to perform the job of the Professor-in-charge by the Managing Committee of the College. On 4.7.1978, an advertisement was issued for appointment of temporary lecturers in the different departments of the College and the Respondent applied and was interviewed on 17.7.1978 and then his service was regularised and approved from the date of his initial appointment by the Governing Body in 1982. Some antisocial elements captured the College and forced the Secretary of the College to suspend him. At that time, the Respondent was working as the in charge Principal and the main purpose of the anti-social elements was to get other person appointed as Principal. The Respondent represented the matter before the University including the Chancellor for staying appointment of the new Principal. The University was pleased to stay the appointment of the new Principal and a Committee was constituted to go into the matter by the University and on the basis of the report of the aforesaid Committee, the Vice Chancellor of the University allowed the Respondent to resume his work as Principal of the College by order dated 11.7.1983. When the said order was not complied with, the Respondent again represented the matter before the Chancellor and other authorities and the Hon''ble Chancellor appointed the then Commissioner of Saran Division to enquire into the matter and the Commissioner reported that the Respondent�s suspension was illegal and he should be allowed to continue. The Syndicate of the University considered the report of the Commissioner and quashed the order of suspension of the Respondent and directed him to join the concerned department against the first post and his appointment in 1978 was treated to be legal. The said decision was communicated to the Managing Committee of the College, but the same was not complied with. Thereafter, show-cause notice was issued to the Managing Committee of the College and, thereafter, the Respondent was allowed to resume his duty. During this period, the Appellant was appointed on the first post of Lecturer. When the Respondent started discharging his duties, then the Appellant filed a writ application being C.W.J.C. No. 8708 of 1988, which was permitted to be withdrawn by this Court on 10.5.1989 giving liberty to the Appellant to move the Chancellor by way of appeal against the decision of the Syndicate. Thereafter, the Appellant moved before the Chancellor but no order was passed in his favour though this fact is denied by the Appellant as according to him he never moved before the Chancellor. Further case of the Respondent is that though he was allowed to join, but neither he was allowed to take classes, nor was he paid his salary and he moved before the authorities and inspite of the order, when no progress was made with regard to the payment of salary, then he filed C.W.J.C. No. 360 of 1995 as stated above, which was disposed of on 17.7.1996 and the Respondent was directed to move before the Chancellor and, thereafter, the Respondent moved before the Chancellor and the Chancellor disposed of the matter on 4.11.1996 ordering that the Respondent be allowed to resume his duty forthwith and payment of his current salary be started without any delay and the continuity of service of the Respondent shall be maintained and the Chancellor further directed the Vice Chancellor to go into the question of payment of arrears of salary. In pursuance of the aforesaid order of the Chancellor, the Respondent�s joining was accepted in 1997 by the Principal of the College and then again the Appellant filed a writ application being C.W.J.C. No. 2531 of 1997, wherein interim orders, as stated above, were passed.
The College Service Commission in its meeting held on 30.5.1997 adjusted the service of the Respondent in the first post of Zoology and sent recommendation for the second, third and fourth post in terms of the direction of the Chancellor. Thus, the Respondent is regularly continuing in the College since 1978 and his service has been regularised by the Commission vide order dated 30.5.1997, a copy of which has been annexed as Annexure 17 of the writ application filed by the Respondent. As the Respondent was not allowed to discharge his full duty and was not being paid arrear or current salary, he filed the aforesaid writ application being C.W.J.C. No. 7157 of 1998, with a prayer to direct the Respondents to make payment of arrears of salary, allowances and other consequential benefits to him with effect from June, 1981 and not to disturb the Respondent in any manner in the discharge of his duties as Head of the Department of Zoology and further to fix his seniority from the date of his initial joining and for the declaration that the claim of the Appellant on the first post of Lecturer in the subject concerned was not sustainable in law. Subsequently, the Respondent in his writ application filed a petition for amendment of the writ application challenging the recommendation made by the College Service Commission in favour of the Appellant against the first post of Lecturer in the subject concerned, a copy of which was annexed as Annexure 24 to the writ application filed by the Respondent.
Thus, the case of the Respondent, in brief, is that he is working since 1978 and the learned Single Judge has rightly held the appointment of the Appellant to be illegal and directed for consideration of the case of Respondent for regularisation of his service in terms of the relevant Statute.
Before dealing with the rival contentions advanced on behalf of the parties, it is apt to mention about the relevant statutory provision. The Bihar State Universities Act was enacted in 1976. Section 57 of the Act provided with regard to appointment to the post of Teachers and Officers in the University. The original provision provided that the appointment of teachers and officers in the University shall be made on the recommendation of the Bihar Public Service Commission and that of other teachers (which applies in the present case), regarding whom no separate provision has been made under the Act, shall be made on the recommendation of the Bihar University Service Commission. The said provision was amended in 1982 containing a provision with regard to appointment of teachers of affiliated Colleges, which provides that the appointment shall be made by the Governing Body on the recommendation of the College Service Commission. The College Service Commission Act was enacted in 1976, which came into force on 26.2.1997 containing a provision for appointment of teachers of the affiliated Colleges and Intermediate Colleges in the State of Bihar. Section 2 thereof contains a provision with regard to the establishment of the College Service Commission. Thus, prior to 1982 the appointment in the affiliated Colleges is to be made by the Bihar University Service Commission and after 1982 by the College Service Commission.
It appears that the temporary and ad hoc appointments were made by the Committee either due to non-taking of steps for appointment on permanent basis or for other reasons. It further appears that under the provisions of the Bihar State University Board Act, 1981, the State Government, after having consultation with the Inter University Board, made a recommendation in the shape of Regulation to the Chancellor with regard to regularisation of service of the purely temporary Lecturers appointed on or before 28.2.1982, which was approved by the Chancellor on 29.1.1986, which empowers the Chancellor to regularise the services of the temporary teachers, who have worked for certain period. In view of the aforesaid regulation, a large number of teachers, who have entered into the Colleges through back-door methods, got their services regularised though, as stated above, the only mode of appointment of Lecturer on permanent basis was provided under the provisions of the Act.
The matter came to this Court and a Division Bench of this Court in the case of Dr. Shiv Narain Yadav v. State of Bihar reported in 2000 (1) P.L.J.R. 817 held that the only mode of appointment of teachers of me affiliated College is on the basis of the recommendation by the Commission and the said mode cannot be bypassed by taking recourse to a provision, which is neither permissible under the Bihar State University Board Act, nor has statutory sanction empowering the Chancellor to regularise the service of the teachers in the affiliated College. This Court further held that if a process of recruitment has been provided then the said provision cannot be ignored by following the procedure, which has no support of law. However, this Court further held that the regularisation matter finally concluded shall not be reviewed or recalled, but hereinafter no regularisation shall be made under the Statute framed under the aforesaid Act. Thus, this Court has held that the Chancellor has no power to regularise the service under a Statute, which has been issued without authority of law.
Learned Counsel appearing for the Appellant submitted that the Respondent has not produced his appointment letter and as such he cannot claim to have been appointed from 1978. This apart, the University constituted an Inspection Team and the said Team had reported that no teaching or non-teaching staff was validly appointed and as such, the Respondent�s appointment, if any, was not valid. This apart, in 1979 an advertisement was issued on the basis of the recommendation of the Inspection Team for appointment on temporary post of Lecturer and the interview was held and one Mr. N.K. Srivastava was selected and appointed. He continued up to 1983. His appointment was not challenged by the Respondent and, thereafter, a fresh advertisement was issued and the Appellant was appointed as stated above and he continued on the said post and later on in terms of the statutory provision, the Commission has recommended for his permanent appointment and in pursuance of which he has joined on the said post.
Learned Counsel for the Respondent, on the other hand, submitted that the Respondent was appointed in 1978 and he continued in that capacity. For a short period when he was under suspension, the Appellant was appointed and, thereafter, the dispute arose and the matter has been settled by the Chancellor and his appointment has been found to be valid and once the Chancellor has directed for continuity of service of the Respondent, the learned Single Judge has rightly directed for consideration of his case for regularisation.
The admitted fact is that after a direction was issued by the University to the authorities to allow the Respondent to continue to work, a dispute arose between the Appellant and the Respondent regarding the first post of Lecturer in the subject concerned. When the Respondent was not paid his salary and was not allowed to take classes, he filed a writ application being C.W.J.C. No. 360 to 1995 but did not make the Appellant as a party and this Court directed the Chancellor to consider the representation of the Respondent. Before the Chancellor also, the Respondent did not implead the Appellant as a party and the chancellor passed the aforesaid order on 4.11.1996 directing the authorities to allow the Respondent to resume his duty and directing for payment of salary etc. As the Appellant was not a party in the aforesaid proceedings, (sic) cannot be said to be decided by the Chancellor as that order was passed behind the back of the Appellant and as such the said order is not binding on the Appellant. The Respondent has not annexed his appointed letter. He claims to have been appointed in 1978 but the voluminous documents on the record shown that the Inspection Team of the University found the appointment to be illegal and directed for fresh appointment on temporary basis and then an advertisement was issued in 1979 and one Mr. N.K. Shrivastava was appointed in 1979 and continued up to 1983. The Respondent did not challenge the said appointment. Thereafter, an advertisement was issued after said Shri Shrivastava left the job for filling up the first post of Lecturer in the department concerned on temporary basis and the Appellant was appointed and the College Service Commission concurred the same in 1987. These orders/decisions were never challenged by the Respondent. In 1984, the College Service Commission issued an advertisement for permanent appointment to the post of Lecturer in the department concerned and the Respondent did not apply, whereas, the Appellant applied and appeared in the interview. After recommendation of his name, the Appellant was appointed on permanent basis and has joined on the said post.
Thus, the Respondent�s claim of continuity in service from 1978 is not acceptable in view of the aforesaid facts. His claim that the College Service Commission regularised his service on the first post of Lecturer in the department concerned is not acceptable as the Commission is not a body to pass an order for regularisation in terms of the Statute and the learned Single Judge has also not accepted the case of the Respondent that his service has been regularised and only directed the Chancellor to consider his case for regularisation in terms of the relevant Statute. The said Statute, as stated above, has been held to be invalid by a Division Bench of this Court in the case of Dr. Shiv Narayan Yadav supra and as such now the Chancellor cannot consider the case of the Respondent for regularisation of his service. This apart, once step for permanent appointment has been taken as back as 1984 and in pursuance of that recommendation has been made and a permanent appointment of the Appellant has been made, there is no question of consideration of the case of the Respondent for regularisation.
In my view, the learned Single Judge was not right in holding that the permanent appointment of the Appellant on the basis of the recommendation made by the statutory body under the provisions of the Act was illegal. Once the Appellant''s appointment has been found to be legal, then there is no question of issuance of any direction to consider the case of the Respondent for regularisation of his service, specially when the regularisation is not permissible in view of the law laid down by this Court.
In the result, the appeals filed by the Appellants are allowed and the judgment passed by the learned Single Judge is set aside. The writ application filed by the Appellant-Braj Bhushan Prasad Singh is allowed and the writ application filed by the Respondent-Balram Prasad Sinha is dismissed.
R.S. Garg, J.
I agree.